President Trump has asked the US Supreme Court to allow the Administration to implement an executive order issued by him in March. On Saturday, the US Court of Appeals for the First Circuit ruled in favor of 23 states that sought to block the executive order which was entitled, “Ensuring Citizenship Verification and Integrity in Federal Elections.”
If implemented, the executive order would give the Department of Homeland Security (DHS) and the US Postal Service (USPS) new powers and responsibilities connected to mail-in ballots. States would be required to mail ballots to voters using only envelopes that are approved by the USPS, including “a unique Intelligent Mail barcode.” States would also have to inform USPS if they intend to mail ballots at least 90 days before an election, and would have to submit a list of eligible voters to USPS at least 60 days before the election. USPS is prohibited from delivering ballots to anyone who is not on a list.
The executive order would also direct the US Attorney General to “prioritize” the investigation and prosecution of any state or local officials who send or receive ballots to voters who are designated as ineligible to vote in a federal election.
In June, 23 states sued to block the executive order, arguing that the order violates the Constitution’s separation of powers, Elections and Electors Clauses, along with the Tenth Amendment’s anti-commandeering doctrine. The lawsuit argued that the Constitution grants only states the power to determine voter eligibility in federal elections, and that the Constitution grants the President no specific power over elections.
In asking the Supreme Court to stay the appeals court’s recent order, the administration argued that the states’ lawsuit “is not justiciable” because the order has not yet been implemented. However, US District Judge Indira Talwani of the US District Court for the District of Massachusetts noted that more than half of the plaintiff states had already purchased envelopes for the fall midterm elections. The Court of Appeals agreed on Saturday, adding that Massachusetts had spent $3 million on envelopes for mail-in ballots that it would be unable to use. The panel also commented on the additional costs for staff training and other resources needed to comply with the order.
Other lawsuits against the executive order are pending, including one filed by the Democratic National Committee in April.
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